IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL. CASE NOS. 2008-0029RICHARD C. GILBERT, and 2009-0753

STATE OF OHIO EX REL.LEE A. GILBERT,

Appellants/Relators,

CITY OF CINCINNATI,

HAMILTON COUNTY BOARD OFCOMMISSIONERS, and

THE METROPOLITAN SEWERDISTRICT OF GREATERCINCINNATI,

Appellees/Respondents.

ON APPEAL FROMTHE HAMILTON COUNTYCOURT OF APPEALSFIRST APPEI;1A STA; 1 c

C LL:D I)

NOV 09 2009

CASE NO. C-07-0166COURT 0,I

REPLY AND RESPONSE TO APPELLEES'MEMORANDUM IN OPPOSITION AND CROSS-APPEAL

Paula Boggs Muetliing (0080018)Counsel of Record

Terrance A. Nestor (0065840)Counsel of Record

City of Cincinnati Law Department

401 Plum Street, Room 214

Cincinnati, Ohio 45202

Telephone: (513) 352-3327

Facsimile: (513) 352-1515

Email: terry.nestorC^?cincinnati-oh.gov

paula.b oggs@cincinnati-or.. govAttorneys for Appellees/ Cross-Appellants/ Respondents City ofCincinnati, Hamilton County Board ofCommissioners, and the MetropolitanSewer District of Greater Cincinnati

MANLEY BURKEA LE6AL PNOF'FSSfONAL ASSOCIA'[7ON

Matthew W. Fellerhoff (0064005)Counsel of RecordDaniel J. McCarthy (0078388)MANLEY BURKEA LEGAL PROFESSIONAL ASSOCIATION

225 West Court StreetCincinnati, Ohio 45202-1098

Telephone: (513) 721-5525

Facsimile: (513) 721-4268

Email: mwfomanleyburke.com

dmccarthyPmanleyburlce.com

Attorneys forAppellants/RelatorsRicha

CnvCINNATi 45202-1098(513) 92L5525

19rR M0.1513; 721-024tl

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS .................... .......................................................................................... i

TABLE OF AUTHORITIES .. ..................................................................................................... ii

1. INTRODUCTION ..............................................................................................................1

II. STATEMENT OF THE CASE AND FACTS .................................................................2

III. LAW AND ARGUMENT ..................................................................................................5

A. Cross-Appeal ..........................................................................................................5

Cross-Appeal Proposition of Law No. 1: The LowerCourt Erred by Denying the City's Motion to Supplementthe Record as the Schweir's Affidavit Provides EvidenceThat it is Dispositive of the Legal Issues in This Case ........................................5

Cross-Appeal Proposition of Law No. 2: The Court Erredin Finding That the Gilberts Were Entitled to theExtraordinary Relief of Mandamus for A Physical Taking ...............................7

Cross-Appeal Proposition of Law No. 3: The Lower CourtErred in Denying the City's Motion for Findings of Factand Conclusions of Law .......................................................................................13

B. Citv's Response to the Gilberts' Opening Brief ................................................16

Response to the City's Reply to Appellants' Proposition of Law:A Governmental Regulation Need Not Deprive A PropertyOwner of All Economically Viable Use of the Property in Orderfor the Regulation to Constitute A Taking of the United Statesand Ohio Constitutions ........................................................................................16

IV. CONCLUSION ................................................................................................................21

CERTIFICATE OF SERVICE ..................................................................................................23

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TABLE OF AUTHORITIES

PAGE

Cases

Bd. of County Comn2'rs of Hamilton Counhf v. Florian, et al (1985),1985 WL 9266 (Ohio App. 1 Dist. Jan. 16, 1985) ....................................................... 8, 10, 12

Florian v. Paul et al (1977),No. C-76332, 1977 WL 199743 (Ohio App 1 Dist. June 8, 1977) ............................. 8, 10, 12

Florian, et al v. Bd. of County Conim'rs of Ham.ilton Couraty (1981),No. C-800843, 1981 WL 9934 (Ohio App 1 Dist. Aug. 5,1981) .............................. 8, 10, 12

Lake Erie and Western Rd. Co. v. Conemissioners of Hancock County,63 Ohio St. 23, 57 N.E. 109 ....................................................................................................... 7

Masley v. City of Lorain (1976),48 Ohio St.2d 334, 358 N.E.2d 596 .......................................................................... 8, 9, 10, 12

Norwood v. Horney (2006),2006-Ohio-3799, 110 Ohio St.3d, 353, 853 N.E.2d 1115 ..................................................... 21

Norwood v. Sheen (1933),126 Ohio St. 482, 186 N.E.2d 102 ............................................................................ 7, 8, 12, 19

Penn Central Transp. Co. v. New York City (1978),438 U.S. 104, 98 S.Ct. 2646 ...................................................................................17, 19, 20, 22

Rigby v. Lake County (1991),58 Ohio St.3d 269, 569 N.E.2d 1056 ........................................................................................ 5

State ex rel. Livingston Court Apartments v. City of Columbus (1998),130 Ohio App.3d 730, 721 N.E.2d 135 ....................................................................... 8, 11, 12

State ex rel. Shelly Materials v. Clarlc County Bd. of Co;nm'rs.,115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d. 59 ................................................... 13, 17

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Sullivan v. Hamilton County Board of Health (2003),155 Ohio App.3d 609, 802 N.E.2d 698 .................................................................................18

The Shopco. Group, et al. v. City of Springdale (1990),66 Ohio App.3d 702, 586 N.E.2d 145 ............................................................................. 19, 20

Statutes

Ohio Revised Code, §2506 ........................................................................................................18

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I. INTRODUCTION

The City, starting with its first sentence and continuing throughout its entire

brief, grossly misstated the law, the facts, the Gilberts' claims, and the Court of Appeals'

second decision in this case. The City's arguments on its Cross-Appeal are centered on

the fallacies that the Court of Appeals departed from established case law and decreed a

new per se taking category for sewer overflows.

The City argues this despite the fact that the Court of Appeals clearly stated

otherwise:

"But the Supreme Court has never held that any overflow of

sewage from a sewage system automatically constitutes a taking.

We emphasize that evidence of one or two sewage overflows onto a

landowner's property would not necessary be sufficient to show a

taking. Proof of damage alone will not entitle a landowner to

compensation."'

The City also attempted to shift all responsibility for their actions onto the

Gilberts. The City, however, is the one that designed Brittney Acres Pump Station to

overflow onto the Gffberts' property. The City permitted the Brittney Acres Pump

Station to repeatedly and continuously dump raw sewage directly onto the Gilberts'

property for over a decade. The City's actions and inactions resulted in the Global

Consent Decree that required placement of a sign labeling the Gilberts' property a

Sanitary Sewer Overflow. The City is the one that failed to upgrade the Brittney Acres

1 Appendix, p.22 at q4.

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Pump Station until the Gilberts were forced to file a lawsuit to protect their

constitutionally guaranteed property rights.

In short, the Gilberts, as property owners, are victims of the City's actions and

inactions regarding its failure to timely upgrade the Brittney Acres Pump Station. The

Gilberts are merely seeking just compensation for the taking of their property caused by

the City's failure to provide sewer capacity and by the repeated dumping of raw

sewage onto their property. Apparently, the City believes it can use the private

property of private citizens for public use without just compensation. Fortunately, the

Court of Appeals correctly applied the law and held that the City must commence an

appropriation action to determine just compensation for the taking of the Gilberts'

property. However, as noted in the Gilberts' opening brief, the Court of Appeals erred

by denying the Gilberts' regulatory takings claim.

II. STATEMENT OF THE CASE AND FACTS

T11e Gilberts will largely rest on the statement of the case and facts set forth in

their opening brief (which is incorporated by reference as if fully restated here).

However, some of the City's clear misstatements must be addressed.

Even the City's statement of the case contains inaccurate statements. The City

argues that the Court of Appeals improperly granted the Gilberts' Motion for Relief

from Judgment because the newly discovered evidence "consisted of information

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available to and in the possession of the Gilberts in the first trial."T In reality, the Court

of Appeals granted the Gilberts' Motion because the City failed to provide documents

requested numerous times that detailed the frequency of sewage overflows onto the

Gilberts' property. The Gilberts point this out not to reargue their Motion, but rather

because the City's misstatement on this point is indicative of their entire brief.

Likewise, the City's statement of facts contains numerous misstatements. For

example, the City argues that the Gilberts claim that, at most, the City dumped raw

sewage onto the Gilberts' property 79 days from 1998 to the present. In reality, the

evidence showed that on at least 79 days there was evidence of a sewage discharge or a

discharge was actually observed at the Brittney Acres Pump Station. (R2, 1730-1866;

Supp. at 94 -137.) The number of days of overflow activity is at least 79 and not more

definite only because the City did not monitor the Brittney Acres Pump Station every

day. (Id.) For instance, the Station was not monitored from February through March

17, 2002. (R2, 1789-90; Supp. at 105, 106.) Additionally, there are other numerous

sporadic dates with no monitoring. (R2,1730-1866; Supp. at 94-137.)

Several pages later in its Brief, the City again argues about the number of

overflows. Instead of looking at the individual reports MSD provided each month to

the Ohi.o EPA, the City relies on self-serving summaries prepared by MSD. The only

appropriate way to determine the rnimber of bypasses is to simply look at all the

2 City's Brief at p. 3.

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monthly reports and add up the days in which there was evidence of an overflow at the

Brittney Acres Pump Station. When such a review is done, it is clear that evidence of an

overflow existed on an absolute minimum of 79 days.

It should, however, also be clear that just because there was no evidence of any

overflows on other days, it does not necessarily mean there was not raw sewage present

in the Gilberts' creek. It stands to reason that raw sewage did not just automatically

disappear from the Gilberts' creek as soon as the City's records no longer indicated

overflow activity at the Pump Station. It is very likely that raw sewage remained in the

Gilberts' creek long after each overflow event.

The City also attempts to blame neighboring septic systems for the sewage in the

Gilberts' creek. The City argues that, "There's nothing in the record to refute that the

sewage in the creek and/or the odor was not a result of one of the failing systems or

their own system's malfunction."3 Contrary to the City's argument, all the evidence in

this case clearly shows that the Brittney Acres Pump Station was designed to overflow

into the Gilberts' creek and that it did in fact overflow numerous times into the Gilberts'

creek. There is not one shred of evidence to support the City's hypothesis that the

sewage from the creek came from any source other than the Brittney Acres Pump

Station. In the face of its own documents that provide hard evidence of a clear taking of

' City's Briefat p. 9.

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property under well-established Ohio law, the City argues the Court of Appeals erred

because it did not discount a suppositional possibility that has no factual support.

Despite the City's other numerous misstatements of facts, the Gilberts will rest

on their opening statement of facts.

III. LAW AND ARGUMENT

This brief will first respond to the propositions of law raised in the City's Cross-

Appeal, and secondly, will reply to the City's Response to the Gilberts' Opening Brief.

A. Cross-Appeal

Cross-Appeal Proposition of Law No. 1: The Lower Court Erred by

Denying the City's Motion to Supplement the Record as the Schweir's

Affidavit Provides Evidence That it is Dispositive of the Legal Issues in

This Case.

The admission or exclusion of evidence is within the trial court's

discretion." In this case, the Court of Appeals, as the trial court in this original action,

properly exercised its discretion and denied the City's last minute request to

supplement the record.

The City filed its Motion to Supplement the Record on Wednesday,

January 28, 2009, which was just days before the Monday, February 2, 2009 oral

argument. This was not the first time in this case that the City attempted to supplement

the record in an untimely matter. The first oral argument in this case was held on

4 Rigby v. Lake County (1991), 58 Ohio St.3d 269, 569 N.E.2d 1056.

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September 17, 2007. The City then moved to introduce additional evidence on October

2, 2007. The Court of Appeals granted the City's first Motion to Supplement the

Record, but properly exercised its discretion and denied the City's second attempt to

untimely supplement the record.

The evidence the City sought to introduce (the status of the long-delayed

upgrade to the Brittney Acres Pump Station) was not necessary for the Court of Appeals

at this stage. The issue of just compensation was not before the Court below. Rather,

the Court was merely tasked with the question of whether a taking occurred. The City

can introduce evidence of the status of the Brittney Acres Pump Station in a future

proceeding to determine just compensation for the taking of the Gilberts' property. On

this issue, the Court of Appeals explained, "We believe that the issue of whether the

upgrade has resolved the problern is more relevant to the issue of damages in the

appropriation proceeding than to issue of whether a taking has occurred."s

Accordingly, the Court of Appeals did not abuse its discretion by denying

the City's second, last minute Motion to Supplement the Record.

5 Appendix, p. 25-26 at 116.

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Cross-Appeal Proposition of Law No. 2: The Court Erred in FindingThat the Gilberts Were Entitled to the Extraordinary Relief ofMandamus for A Physical Taking.

The Court of Appeals did not abuse its discretion in finding a taking of the

Gilberts' property because the City continuously and repeatedly used the Gilberts'

private property for a public purpose: namely by turning the Gilberts' property into a

sanitary sewer overflow. A governmental agency cannot unilaterally decide to use

private property for a public purpose without paying the property owner just

compensation. The Court of Appeals simply ordered the City to commence an

appropriation action to compensate the Gilberts for the public use of their private

property.

Courts in Ohio have long made it clear that when a governmental agency

deposits raw sewage onto another's property, the governmental agency has taken the

property and the owner must be paid just compensation. As this Court held, in the

1933 case of Norwood v. Sheen, "[a]ny direct encroachment upon a land, which subjects it

to a public use that excludes or restricts the dominion and control of the owner over it,

is a taking of his property, for which he is guaranteed a right of compensation by

Section 19 of the Bill of Rights."6

Norwood v. Sheen (1933), 126 Ohio St. 482, 488, 186 N.E.2d 102 (quoting, La)ce Erie and

Western Rd. Co. v. Commissioners of Hancock County, 63 Ohio St. 23, 57 N.E. 109).

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In Sheen, raw sewage was dumped onto Mrs. Sheen's property for four

years. Finally, the City of Norwood constructed a sewer system to stop the deposit of

raw sewage onto Mrs. Sheen's property.7 This Court found that Norwood's actions

constituted a taking of Mrs. Slieen's property $ The Court explained that the raw

sewage that flowed onto Mrs. Sheen's property did not constitute a permanent and

complete taking, "but there was a direct encroachment upon the land which excluded

the dominion and control of the owner over it until the condition was abated. This

constituted legally a taking of the property for a public use."'

Further, a long line of cases in Ohio make it clear that a governmental

agency must pay just compensation for depositing raw sewage onto a neighboring

private property.10 The City's attempt to distinguish these factually similar cases are

without merit. In Masley v. City of Lorain, this Court found that, "[a] municipality in

creating a public improvement, may be liable for causing sewage, percolating water or

surface water to be cast upon land of another, if in so doing, the owner is deprived of

1 0

Id. at 490.

Id. at 494.

Id. at 487-88.

See, Masley v. City of Lora.in (1976), 48 Ohio St.2d 334, 336, 358 N.E.2d 596, 598; State ex

rel. Livingston Court Apartments v. City of Columbus (1998), 130 Ohio App.3d 730, 721

N.E.2d 135; Bd. of County Cornm'rs of Hamilton County v. Florian, et al (1985), 1985 WL

9266 (Ohio App. 1 Dist. Jan. 16,1985); Florian, et al v. Bd. of County Comm'rs of Hamilton

County (1981), No. C-800843, 1981 WL 9934 (Ohio App 1 Dist. Aug. 5, 1981); Florian v.

Paul et al (1977), No. C-76332, 7977 WL 199743 (Ohio App 1 Dist. June 8, 1977).

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any of the use or enjoyment of his property:'17 This Court further held that, "a

municipality is also liable if it causes sewage to be emptied into a natural water course,

thereby creating a nuisance inflicting special and substantial damages on the lower land

owner."12

The City attempts to distinguish Masley by first arguing the Gilberts did

not establish wide-spread encroachment on their property. However, as established

above, the City's own documents clearly show that the Brittney Acres Pump Station

was designed to overflow onto the Gilberts' property and did, in fact, do so on at least

79 different occasions. Furthermore, the City unilaterally reserved the right to dump

raw sewage onto the Gilberts' property at any time. The City took the Gilberts'

property during the entire period the Brittney Acres Pump Station was over capacity

and used the Gilberts' property as their back-up reserve sanitary sewer overflow. Even

when the Brittney Acres Pump Station was not actively dumping raw sewage onto the

Gilberts' property, the City was still using and taking the Gilberts' property for public

use by reserving the right to be able to dump raw sewage at any time onto their

property. The sign erected by the City describing the Gilberts' property as a sanitary

sewer overflow confirms this fact.

" Masley, 48 Ohio St.2d at 336.

12 Id. at 340.

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It is simply not rational to conclude that a residential property owner is

not denied the right to use and enjoy his or her property when it is under constant

threat to be over-washed with raw sewage at every change of the weather. This is what

the City argues.

The City further attempts to distinguish Masley from this case by stating

that the Gilberts were not damaged by the repeated sewage overflows. This assertion

flies in the face of logic and simply cannot be further from the truth. Because of the

continuous possibility of the presence of raw sewage, the Gilberts have not been able to

use and enjoy large portions of their land for years. (R. 223, Supp. at 4.) They have not

been able to breathe fresh air. They cannot go anywhere near the creek. (R. 510; Supp.

at 39.) Further, the raw sewage has greatly reduced the volume marketability of their

property. (R. 246-49; Supp. at 17.) Common sense dictates that potential buyers would

not want to buy property that is frequently overrun with raw sewage overflows. In

fact, the Gilberts, both experienced real estate professionals, testified about the adverse

effects the creek has had and continues to have on the property. (R. 246-47; Supp. at 17.)

The testimony was never contradicted.

The City attempts to distinguish the Florian line of cases in the same

manner as it did for Masley. ihe City's attempts to distinguish Florian likewise fau. The

City's entire argument is, "The Gilberts did not provide any evidence related to the

level or extent of the overflows and utterly failed to provide any evidence of damages

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resulting from overflows of the Brittney Acres Pump Station."13 However, as

established above, the City's own documents established that the City dumped raw

sewage on the Gilberts' property a minimum of 79 days, while also reserving the right

to do so at any other time. The Gilberts specifically testified about the damage they

suffered because of the constant presence or threat of the presence of raw sewage on

their property. There is no evidence in the record to the contrary.

This case is also factually similar to the 10th District Court of Appeals case

State ex rel. Livingston Court Apartments v. City of Columbus.14 In Livingston Court

Apartments, the property owner owned an apartment building in Columbus. The owner

filed a mandamus action alleging that Columbus had a duty to cominence an

appropriation action because the City had allowed the sanitary sewer system to

deteriorate and malfunction causing raw sewage backups into the basement of an

apartment building. The Court of Appeals held that the failure of Columbus to

properly maintain and control the sewer system resulted in an interference with the use

and enjoyment of the owner's property and therefore, constituted a taking.

Accordingly, the Court of Appeals granted the requested writ of mandamus and

ordered the commencement of an appropriation proceeding.'s The court noted, "A long

" City's Brief, p. 18.

14 State ex rel. Livingston Court Apartnients v. City of Colurnbus (1998), 130 Ohio App.3d

730, 741, 721. N.E.2d 135.

15 Id. at 741.

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line of Ohio Supreme Court cases holds that a taking may result where sewage or storin

water from a governmental authority causes damage to a property owner.""

The Court of Appeals in this case properly reviewed the facts presented

and analyzed Ohio precedent established in Sheen, Masley, Livingston Court Apartments

and Florian and concluded that the City's actions constituted a taking of the Gilberts'

property.

The City again attempts to argue that the Court of Appeals' decision held

that any overflow from a public sewer onto private property is a per se taking. The City

is again wrong. Notably, the words "per se" never appear in the Court of Appeals'

decision. Further, as established above, the Court of Appeals specifically stated that its

decision could not be construed in the manner in which the City attempts to twist the

Court's findings. There is no way to construe the decision that included the sentence,

"[w]e emphasize that evidence of one or two sewage overflows onto a landowner's

property would not necessarily be sufficient to show a taking[,]" created a new per se

category of takings cases. There was simply nothing unusual about the Court's decision

in this case. The Court properly applied the relevant facts to appropriate Ohio

precedent and concl.uded that the City, by dumping raw sewage continuously and

repeatedly onto the Gilberts' property, occupied the Gilberts' property and owed the

Gilberts just compensation for the taking of their private property for public use.

16 Id. at 736.

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The City also argues that the Gilberts were not entitled to a writ of

mandamus because they have a plain and adequate remedy of law. However,

following the above-discussed cases, mandamus is the only procedure the Gilberts

could have pursued to ensure just compensation for the taking of their property.

"Mandamus is the appropriate action to compel public authorities to commence

appropriation cases when an involuntary taking of a private property is alleged."" The

Gffberts were not required to seek damages for trespass or any other creative tort the

City could come up with because what is alleged is the taking of their property for

public use. Ohio courts have been very clear that the only procedure that may be used

to seek just compensation for the taking of private property is mandamus.

Cross-Appeal Proposition of Law No. 3: The Lower Court Erred inDenying the City's Motion for Findings of Fact and Conclusions of Law.

The Court of Appeals did not abuse its discretion and properly denied the

City's request for findings of fact and conclusions of law. There was simply no need for

specific findings of fact and conclusions of law when the Court of Appeals issued a

detailed written opinion.

17 State ex rel. Sh.elly Materials v. Clark Couraty Bd. of Comm'rs., 115 Ohio St.3d 337, 2007-

Ohio-5022, 875 N.E.2d. 59, at 115.

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The City essentially raises two factual issues that it argues the Court of

Appeals should have more specifically addressed. First, the City continues to claim that

the evidence was disputed about the number of days that the Brittney Acres Pump

Station overflowed onto the Gilberts' property. In reality, no such dispute exists. The

City's own documents clearly reflect that on at least 79 days from 7.998 to the present,

the Brittney Acres Pump Station had evidence of a discharge or a discharge was

actually observed. The City, ignoring its own reports, argues that the evidence showed

discharges on only eight days during that time period. They argue that the Court of

Appeals was required to specifically find whether the Brittney Acres Pump Station

overflowed at a minimum of 79 times or at the most eight times.

However, such a finding was not necessary to the legal issues present in

this case. As noted above, there is no contradiction that the Brittney Acres Pump

Station was designed to overflow onto the Gilberts' property and did so, according to

the City's own documents, "frequently." A number of exact days is not relevant to

whether or not the City used the Gilberts' private property for a public use. Further, the

City's use of the Gilberts' property extended well-beyond the number of days when an

actual sewage overflow occurred. The City continuously used the Gilberts' property

every day that a sewage overflow was possible onto the Gilberts' property. In sum, the

Court of Appeals did not abuse its discretion in refusing to make a specific finding of

fact on this issue, because it was not required to do so.

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The City also takes issue with the fact that none of the witnesses in this

case testified that they personally witnessed an overflow of sewage onto the Gilberts'

property. While this is technically accurate, it is also an absurd standard. The Gilberts

produced ample evidence that the Brittney Acres Pump Station repeatedly overflowed

onto their property. Three different witnesses from MSD testified that the Brittney

Acres Pump Station was in fact designed to overflow onto the Gilberts' property. (R.

70, R2 1689-92, 427; Supp. at 6887-90, 69.) The Gilberts both testified to observing, either

by sight or smell, raw sewage in the creek. (R. 233, 509-10; Supp. at 4030-39.)

Accordingly, the Gilberts established, beyond clear and convincing evidence, that the

Brittney Acres Pump Station dumped raw sewage onto their property. And, again, the

City produced no evidence to rehrte those facts. No specific findings of fact on this

point was warranted or required because it was never in genuine dispute.

The City finally argues at length that the Court of Appeals erred by failing

to specify the nature of the taking. This is not true. The decision clearly required the

City to appropriate the Gilberts' property. In its summary, the Court stated, "In sum,

we conclude that the Gilberts have shown 1) that they possess a legal right to

appropriation, 2) that the city has a clear legal duty to appropriate the property, and 3)

that they have no adequate remedy at law."'$

18 Appendix, p. 26, at y[17 (emphasis added).

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If the take was for something less than the entire property, the City, at a

minimum, must pay the Gilberts just compensation for taking their property during the

entire time that the Brittany Acres Pump Station was over capacity. As noted above,

even when raw sewage was not physically flowing onto the Gilberts' property, the City

still was using the property as a reserve for raw sewage overflow.

Furthermore, appropriation of the entire property is appropriate under

the Gilberts' regulatory takings claim that the Court of Appeals erred in denying. Even

if the Court of Appeals erred by failing to more specifically identify the taking by

physical invasion, such error was harmless because the City must appropriate the entire

property as a result of the Gilberts' regulatory takings claims.

B. Citv's Response to the Gilberts' Opening Brief

Response to the City's Reply to Appellants' Proposition of Law: AGovernmental Regulation Need Not Deprive A Property Owner of AllEconomically Viable Use of the Property in Order for the Regulation toConstitute A Taking of the United States and Ohio Constitutions.

In addition to the physical taking that occurred in this case because of the

deposit of raw sewage onto the Gilberts' property, a regulatory taking also occurred

because the City prevented the Gilberts from developing their property in accordance

with the zoning provisions by failing to provide adequate sewage options. The Court of

Appeals below did not consider the Gilberts' regulatory takings claim in its second

decision. As stated in the Gilberts' opening brief, the Court of Appeals erred in denying

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the Gilberts' regulatory takings claim because the Court applied the wrong legal

standard. Specifically, the Court iunproperly held that a property owner "must be

denied all economically viable use of the land" in order for a taking to occur. The Court

never even entertained the appropriate analysis set forth in Penn Central,19 Shelly

Materials20 and similar cases. Accordingly, the Court of Appeals' decision should be

reversed on this issue.

While the City acknowledges the Gilberts' argument - that a governmental

regulation must not deprive a property owner of all economically viable use in order for

the regulation to constitute a taking - the City never addressed the merits of the

Gilberts' claim. Specifically, in Penn Central, the United States Supreme Court clearly

held that a property owner need not be deprived of all economically viable use for a

regulatory taking to occur.21 Likewise, this Court, in Shelly Materials, recognized that

Penn Central indeed also applies in Ohio22 Contrary to the City's claim that this was not

raised below, the Gilberts' Verified Petition for Writ of Mandamus specifically stated

that the City's actions and inactions interfered with the Gilberts' investment-packed

expectations of the property. This is at the very heart of a Penn Centrat takings claim.

19 Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646.

20 State ex rel. Shelly Materials v. Clark Cty. Bd. of Commrs., 1.15 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59.

21 Penn Central, 438 U.S. at 104.

22 Shelly Materials, 2007-Ohio-5022 at y[18,19.

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Rather than address the specifics of the Gilberts' claim on appeal, the City

cites to a string of cases for the proposition that a taking could not have occurred in this

case because the Gilberts' were not deprived of all economically viable use of the

property. The City first cites to Sullivan v. Hamilton County Board of Health.23 This case is

muc11 different than the Sullivan case. In that case, the owners of the property at issue

received an offer of $1,250,000.00 if the purchaser could fully develop the subject

property. The offer was reduced to $600,000.00 if certain sewage limitations remained

in place.24 They were not in the Catch 22 the Gilberts were in. The Gilberts attempted

to market and sell the property. However, because of the lack of sewer connections and

the sign stigmatizing the property as a sanitary sewer overflow, the Gilberts could not

sell the property even for a reduced amount. Further, the property owners in Sullivan

had several sewage options including the use of soil absorption systems or by

connecting to the sanitary sewer system. In thiy case, the Gilberts have no such options.

MSD repeatedly denied the Gilberts' sewer connection request while the Ohio EPA and

the Hamilton County Health District denied an on-site septic solution because of the

long planned upgrade of the Brittney Acres Pump Station. Furthermore, Sullivan was

an administrative appeal sought under R.C. §2506 and was not a mandamus case.

13 Sullivan v. Hamilton County Board of Health (2003), 155 Ohio App.3d 609, 802 N.E.2d

698.

24 Id. at 611-622.

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The City then attempts to distinguish November Properties v. City of

Mayfield Heightsu from this case by claiming that the property owners in that case were

denied all beneficial use of their property. However, in that case there was no

discussion of whether the property owners were denied all use of their property. The

November Properties case, however, made it clear that the City had a duty to upgrade the

Brittany Acres Pump Station in a reasonable time period. The Eight District stated:

"The problem of inadequate sewers is not one that arises

immediately, instantaneously or overnight. It is a gradual

development over a long period of time. Engineering data

concerning the location, design and size of sewers is regularly

available to a municipality. Thus, municipalities are, or should be,

aware of these problems and they have the duty and obligation to

develop a reasonable plan for the improvement of their sewer

systems so that they will be adequate at all times."26

Specifically, the City then states, "It is clear that they have not been denied

all economically viable use of their property." Again, there is no requirement under

November Properties or more specifically under Penn Central that a property owner must

be denied all economically viable use of the property for regulatory taking to occur.

Similarly, the City's reliance on the Shopco. Group v. Springdale is

misplaced. In Shopco., the property owner argued that the zoning restrictions

25November Properties v. City of Mayfield Heights (1979), No.36926, 1979 WL 210535 (OhioApp. 8 Dist. Dec. 6, 1979).

26 November Properties v. City of Mayfield Heights (1979), No. 36926, 1979 WL 210535 *17(Ohio App. 8 Dist. December 6, 1979).

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constituted a taking of its property.27 In this case, the Gilberts have no problem with the

zoning restriction on their property. In fact, the Gilberts simply wanted to develop their

property as permitted by the applicable zoning provisions which permit at least ten or

eleven single-family homes.

Further, the City relies on Shopeo. for the proposition that a regulation

must deprive a property owner an economical use of a property to constitute a taknlg.

This simply is not true under the United States Supreme Court and Ohio Supreme

Court precedent. The Gilberts alleged a Penn Central type of regulatory taknlg, but the

Court of Appeals refused to consider the proper analysis and simply followed the City's

misleading and irrelevant case law for the proposition that the Gilberts did not suffer a

taking because they were not deprived of all economically beneficiary use of the

property.

It is ironic that the City argues on its issues on appeal that the Court of

Appeals' second decision radically altered Ohio case law in takings jurisprudence.

However, on their contention, the Court of Appeals specifically limited its holding and

clearly stated that deposit of raw sewage was not a per se taking. However, on the

Cilberts' point on appeal, the Court of Appeals specifically stated that the Gilberts did

not suffer a taking because the City did not deprive the Gilberts of all economically

27 ne Shopco. Group, et al. v. City of Spririgdate (1990), 66 Ohio App.3d 702, 705, 586N.E.2d 145, 148.

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viable use of their property. This was a clear misstatement of law. The Court of

Appeals' heightened requirement, in fact, was a radical departure from established

precedent for regulatory takings because the United States Supreme Court and this

Court have made it clear that a property need not be deprived of all economically

beneficial use of their property for a taking to occur.

IV. CONCLUSION

As this Court emphasized in Norwood v. Horney, the rights associated with

property in American law, "to acquire, use, enjoy, and dispose of property are among

the most revered in our law and traditions."2" The right to property is a fundamental

right and, "[t]here can be no doubt that the bundle of venerable rights associated with

property is strongly protected in the Ohio Constitution and must be trod upon lightly,

no matter how great the weight of other forces."29 In this case, the Gilberts are entitled

to just compensation for the regulatory taking of their property as the physical invasion

taking of their property.

21 Norwood v. Horney (2006), 2006-Ohio-3799, 110 Ohio St.3d, 353, 853 N.E.2d 1115 at y[34.

29 Id. at y[ 38.

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A LEGAL PROF@SSIONAL ASSOGIATION (6151 v21ss25Pnx No. (51.1) 7214268

For the reasons set forth above, the Gilberts respectfully request the Court affirm

the Court of Appeals decision regarding the Gilberts' physical invasion takings claiun

and reverse the Court of Appeals decision regarding the Gilberts' regulatory takings

Penn Central claim.

Respectfully submitted,

W. Fellerhoff (0064005)Counsel of Record

Daniel J. McCarthy

MANLEY BURKE

(0078388)

A LEGAL PROFESSIONAL ASSOCIATION

225 West Court Street

Cincinnati, Ohio 45202-1098

Telephone: (513) 721-5525

Facsimile: (513) 721-4268

Email: mwf@manleyburke.com

dmccarthy@manleyburke.com

Attorneys forAppeltants/RetatorsRichard C. and Lee A. Gilbert

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing Brief of Appellants is being mailed to all

parties entitled to service under Rule 5 of the Ohio Rules of Civil Procedure on the 9th

day of November, 2009.

DanieWMcCarthy

SERVICE LIST:

Paula Boggs Muething

Counsel of Record

Terrance A. Nestor

Counsel of Record

City of Cincinnati Law Department

401 Plum Street, Room 214

Cincinnati, Ohio 45202

Attorneys forAppellees/Cross-Appellants/Respondents City of Cincinnati, HamiltonCounty Board of Commissioners, and theMetropolitan Sewer District of Greater Cincinnati

N:\[LIENTS\Gilbert, Dick & lee\Fteadings\Sup CL Reply & Resp to Oppeltee's Memo in Dpp of [ros Appeal (1106-09).DJM.doc-wlh

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